Submitted on Briefs: February 1, 2017
FROM: District Court of the Fifteenth Judicial District, In
and For the County of Sheridan, Cause No. DC-46-2013-5
Honorable David Cybulski, Presiding Judge
Appellant: Chad Wright, Chief Appellate Defender, Chad
Vanisko, Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Micheal
S. Wellenstein, Assistant Attorney General, Helena, Montana
Benjamin Fosland, Sheridan County Attorney, Scobey, Montana
McGrath Chief Justice
Michael Robert Brekke appeals from the District Court's
denial of his motion to dismiss the criminal charges against
him on the ground that he was denied his right to a speedy
trial. We affirm.
The issue on appeal is: Did the District Court err in denying
Brekke's motion to dismiss on speedy trial grounds?
AND PROCEDURAL BACKGROUND
On August 12, 2012, in Sheridan County, Montana, Brekke took
a pickup that did not belong to him and went on a joy ride
through a campground where he had been staying. He damaged
the truck and campground property. A Sheridan County
Sheriff's Deputy investigated and issued Brekke a
complaint and notice to appear in Justice Court for the
offenses of criminal mischief, a felony, and unauthorized use
of a motor vehicle, a misdemeanor. The Deputy did not arrest
Brekke on those charges and his initial appearance in Justice
Court was set for August 22, 2012.
Also on August 12, the Sheriff's Office discovered that
Brekke was wanted in Minnesota on an arrest warrant for a
probation violation following a conviction for check forgery.
The Sheriff arrested Brekke on the Minnesota warrant, and he
made an appearance in Justice Court on the campground
charges. On August 14, 2012, Brekke appeared in District
Court, waived extradition, and consented to return to
Minnesota. Brekke received a one-year sentence on the
Minnesota probation violation. During that sentence he was
charged with and convicted of escape and received an
additional ninety-one-day sentence.
On March 12, 2013, while Brekke was in prison in Minnesota,
the State of Montana obtained leave from the District Court
to file an information charging him with criminal mischief
and unauthorized use of a motor vehicle arising from the
August 12, 2012 campground incident. The District Court
issued a warrant for Brekke's arrest on those charges and
set bail. The arrest warrant and charging documents were
served on Brekke on May 14, 2013, while he was still being
held in Minnesota. The Minnesota authorities informed the
Sheridan County Sheriff that Brekke would be released from
his Minnesota incarceration on June 1, 2013. Within a day or
two after that date, officers from the Sheridan County
Sheriff's Office picked up Brekke in Minnesota and
transported him back to Montana.
Brekke obtained representation by the Public Defender and
made an initial appearance in District Court on the Montana
charges on June 24, 2013. The District Court set trial for
September 12, 2013. On June 25, 2013, the District Court
reduced Brekke's bail and he was released from custody.
Brekke's lawyer asked for and obtained a continuance of
the September trial date and the District Court re-set the
trial for October 17, 2013. The District Court conducted an
omnibus hearing on the charges on August 13, 2013. On
September 16, 2013, Brekke moved to dismiss the charges,
contending that he was not afforded a speedy trial. Shortly
thereafter, on September 20, 2013, Brekke moved to continue
the October 17 trial date. The District Court re-set the
trial for January 16, 2014.
The parties briefed the speedy trial issue and on December
20, 2013, the District Court conducted a hearing. Brekke did
not appear at the hearing, and his attorney represented to
the District Court that Brekke waived his right to be
present. Neither Brekke nor his attorney submitted any
evidence in support of the speedy trial motion.
The State called the campground owner who testified to the
factual basis for the charges against Brekke and the damage
done to the pickup and campground property. The Sheridan
County Sheriff testified to serving the arrest warrant in
Minnesota and securing Brekke's return to Montana. He
testified that all of the witnesses named in the
investigative file were still available to testify and that
he was not aware of any lost or ...